In 2009, current D.C. Circuit Court of Appeals nominee Caitlin Halligan donated her legal services pro bono and co-authored amicus brief which argued that the 2001 AUMF did not authorize indefinite military detention of captured unlawful enemy combatants.

The Honorable Senator Mitch McConnell
United States Senate
Washington, D.C.
March 4, 2013

Dear Senator McConnell,

We are writing today to express our strong opposition to the appointment of Caitlin J. Halligan to the D.C. Circuit Court of Appeals. We do so because we have seen, first hand, how judicial activism can thwart efforts by the executive and legislative branches of government to protect this nation in matters of national security. We have observed judges on the D.C. Circuit inexplicably dismiss compelling evidence in Guantanamo detainee habeas cases and order the detainees released, only to have those same cases overruled at the appellate level. As the threat of terrorism by groups and individuals inside the U.S. homeland continues to rise, it is essential that the American people continue to be protected through laws crafted and enacted by their sworn representatives, not by unelected judges who serve lifetime terms, accountable to no one.

The D.C. Circuit Appellate bench has jurisdiction over military commission appeals. Ms. Halligan has a public record dismissing military commission as inferior courts. Indeed, the New York City Bar Association Committee on Federal Courts, on which she served, published a report which she signed, describing military commissions as outside the “rule of law.” As you well know, the Detainee Treatment Act and the Military Commissions Act were nothing less than the result of a vigorous, hard-won bi-partisan effort to create a fair, reasonable, and effective legal framework within the confines of the Authorization for the Use of Military Force (AUMF) that dealt with an unconventional, asymmetrical existential threat to this nation. Despite the fact that the MCA and indefinite detention was upheld by the United States Supreme Court, Ms. Halligan, working pro bono, submitted an amicus curiae brief in the 2009 case of Ali Saleh Kahlah Al-Marri v. Spagone, arguing that the AUMF did not authorize the seizure and indefinite military detention, without criminal trial, of a resident alien who allegedly conspired with Al-Qaeda to execute terror attacks on the United States.

We regret that the Constitutionally-required process of Advice and Consent has become politicized, and that activist nominees to the bench try to thwart exposure of their legal philosophy through ambiguous or incomplete testimony. But Ms. Halligan has taken this to a whole new level. She has attempted to remake herself entirely. We believe that she has affirmatively misrepresented herself to the Judiciary Committee, thus lowering the bar on candor and honesty even further. If the Senate votes to affirm her nomination, in our view, it will be complicit in this deception. Worse, the American people, who count on our representatives to act on our behalf, will be even more discouraged. We are tired of political expediency in matters that affect our lives, and the lives of our children and grandchildren. When judges take these matters away from the people, where do we then go?

We urge you and your fellow senators not to allow President Obama to wear you down. As you have before, we urge you to vote “no” against cloture in the nomination of Caitlin Halligan.

Updated 6:05 PM EDT, Oct 2, 2012: The Department of Justice filed a notice of condemnation in U.S. District Court today to take possession of Thomson Prison. In part, the purpose of the acquisition reads as follows:

“… as well as to provide humane and secure confinement of individuals held under authority of any Act of Congress, and such other persons as in the opinion of the Attorney General of the United States are proper subjects for confinement in such institutions.”

The detainees at Guantanamo are being held under an Act of Congress, the Authorization to Use Military Force of 2001.

New York, NY, October, 2, 2012 — 9/11 families strongly object to the Obama administration’s plan to purchase Thomson Correctional Facility in Thomson, Illinois without Congressional approval. As stated in our July 27 letter, signed by more than 100 family members, to House Speaker John Boehner, 9/11 families believe this purchase is a back door effort to circumvent Congress and the will of the American people. Though Senator Dick Durbin and Attorney General Eric Holder have denied that the prison would be retrofitted to receive Guantanamo detainees, this would not be the first time the Department of Justice defied Congress in an effort to bring terrorists inside the Homeland.

Recent news that the terrorist attack on the American consulate in Benghazi was led by a former Guantanamo detainee has underscored the dangerous profile of current detainees. They continue to pose a serious national security threat to the U.S., and should not be viewed as political pawns which can be moved from a safe, secure off-shore military installation to the heart of America in order to satisfy a small, left-wing political constituency. This is the same constituency that agitated for the release of prior detainees who have returned to the battlefield and who engage in anti-U.S. propaganda and terrorist recruiting.

Mr. Durbin admitted in today’s announcement that the purchase, made in open defiance of the House subcommittee which overseas federal prisons, was unprecedented. Coupled with President Obama’s 2011 signing statement on legislation barring funds to transfer Gitmo detainees to the U.S. — calling the legislation “an extreme and risky encroachment on the authority of the executive branch” — we have no confidence that the Obama administration will defer to the wishes of the American people and their elected representatives on the matter of Guantanamo.

This misappropriation of funds and flouting of Congressional authority goes to the very heart of the public’s distrust of the Obama administration and the ever-widening gap between what it says and what it does.

Washington, D.C., July 27, 2012—In a strongly worded letter to House Speaker John Boehner, more than 100 9/11 family members urged Congress to use its appropriations authority to prevent the Obama administration from purchasing Thomson Correctional Facility in Thomson, Ill. The families warned that acquiring the state prison would provide President Obama with a place to move 168 terrorist detainees currently held at Guantanamo Bay, Cuba inside the U.S. homeland, and would put Americans at risk.

“We believe that if Congress clears the way for the Thomson purchase,” the letter stated, “the President will invoke executive authority, defy the wishes of the American people and close Guantanamo Bay detention center without notice, despite bi-partisan opposition from Congress.” They called on members of Congress to join Rep. Frank Wolf, Chairman of the House Appropriations Committee, in rejecting the administration’s request for hundreds of millions of dollars to purchase and retrofit the facility.

In 2010, the Obama administration planned to purchase the Thomson prison and move detainees there but was repeatedly rebuffed by Congress. In 2011, Congress passed bi-partisan legislation barring the use of funds to transfer terrorist detainees into the country for any reason. The families’ letter cited the President’s signing statement on that legislation in which he called the provision “an extreme and risky encroachment on the authority of the executive branch.”

The President’s extensive use of executive authority to nullify acts of Congress has led families of terrorism victims to believe that President Obama will circumvent Congress to fulfill his 2008 campaign promise to close Guantanamo.

“The Obama administration has a track record of trying to end run Congress,” said Debra Burlingame, co-founder of 9/11 Families for a Safe & Strong America. “The Department of Justice tried to sneak two Gitmo detainees into Virginia in May of 2009 despite the fact that both had admitted attending terrorist training camps in Tora Bora, Afghanistan led by terrorist leader Abdul Haq.”

The families’ letter rejected the Obama administration’s claim that the prison project will create an economic boon to the small rural community, calling it a “specious pretense” and “speculative.” The federal government has spent more than $500 million to house terrorist detainees in a state-of-the-art facility at Guantanamo Bay, which includes a court house for detainees being tried under military commissions.

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The Honorable John Boehner
Speaker of the House
United States Congress

July 27, 2012

Dear Mr. Speaker:

We have learned that the Obama administration, through the Department of Justice and the Bureau of Prisons, has revived its plan to purchase the Thomson Correctional Facility in Thomson, Illinois. In 2009, we vigorously opposed President Obama’s plan to purchase the Thomson facility in anticipation of closing the detention center at Guantanamo Bay, Cuba and ship nearly 200 terrorist detainees to Illinois. We believed then, and believe now, that bringing hardened terrorists into the U.S. mainland would needlessly put Americans at risk.

We believe that if Congress clears the way for the Thomson purchase the President will invoke executive authority, defy the wishes of the American people, and close Guantanamo Bay detention center without notice despite bi-partisan opposition from Congress. Indeed, while signing a 2011 Defense Authorization bill which included a provision barring the use of funds to transfer Gitmo detainees to the U.S. for any reason, the President signaled his views in a signing statement, calling the prohibition “an extreme and risky encroachment on the authority of the executive branch.”

In an April 4, 2011 letter to the Illinois delegation denying its intention to use the Thomson facility for Guantanamo detainees, the Obama administration nevertheless repeated its position that it considers Thomson sufficiently secure to house detainees and opposes Congressional restrictions on funding it.

Attorney General Eric Holder’s recent testimony before the U.S. Senate, stating that the administration will not seek to move detainees to Thomson, has not reassured us. The President is in no way bound by the Attorney General’s sworn statement. The administration’s practice of using executive authority to nullify Congressional legislation, coupled with its continued insistence that Thomson is a perfectly appropriate place to relocate more than 100 known terrorists, has compelled us to speak out.

We call on Congress to restrain the President in the only way it can under the circumstances — through its appropriations authority. We urge members of Congress to join Representative Frank Wolf, Chairman of the House Appropriations Committee, to stop President Obama from using this ploy to avoid being held accountable to the American people for bringing terrorists to the U.S. In poll after poll, the public has adamantly rejected the plan to close Guantanamo and bring terrorists to the homeland. In December 2009, a Gallup poll found that 68% opposed closing Gitmo and moving terrorists to the U.S. In December 2010, a Rasmussen poll found that 84% of voters worried that closing Gitmo would set dangerous terrorists free.

The Detainee Review Task Force found in its final report that 95% of the entire detainee population as of January 2009 had a connection to Al Qaeda. We have learned from JTF-GTMO officials that the current final group of 168 detainees consists of the most radical leaders, trained operatives, and ideologically dedicated Islamists of the entire original Guantanamo population.

Moving these dangerous individuals to Thomson under the transparently specious pretense of creating a speculative “federal jobs program” while our troops continue to take casualties and sacrifice their lives on the very battlefield where these terrorists were captured is an outrageous insult to the troops and their families.

We reject the extravagant claims that spending hundreds of millions of federal dollars to purchase, refit and operate the facility will rescue the economy of this small, rural community. In fact, studies show that prison enterprises aimed at injecting dollars into failing communities repeatedly fail to live up to expectations. (See http://www.csmonitor.com/Business/2010/0315/Can-a-terror-prison-spark-a-boom) Rural communities like Thomson are sometimes worse off, in part because local economies are displaced, volume suppliers are large companies from far away, and residents don’t have the skills or qualifications to work as prison guards or administrative staff. This would certainly be the case if Thomson were converted to a maximum security facility operated by the U.S. military and unionized federal employees.

The detention facility at Guantanamo Bay is the most secure facility in the world. Located on a remote island, protected by land mines, and guarded by military personnel with state-of-the-art equipment and weapons, no one can come within miles of this secure facility unless the U.S. military wants them to. The U.S. government has spent more than $ 500 million for this facility, which includes a state of the art courtroom for those detainees who are being tried in military commissions.

In light of the above facts, the case for closing Guantanamo, indisputably a superbly-run detention center, can only be reduced to one factor: politics.

As Americans whose loved ones were murdered by the very individuals who are now securely detained at Guantanamo, and as citizens who have watched more than 7,000 of our valiant armed forces sacrifice their lives in battle since that dark Tuesday morning almost eleven years ago, we regard the politics behind the effort to close Gitmo as nothing more than a cynical maneuver aimed at fulfilling a 2008 campaign promise.

Mr. Speaker, we urge you and your colleagues on both sides of the aisle to stand firm with the American people, and prevent this lawless and irresponsible plan from going forward.